BVA9509600
DOCKET NO. 90-47 694 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Washington,
DC
THE ISSUE
Entitlement to a compensable disability rating for service-
connected bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
R. E. Coppola, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1962 to February
1964.
This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from a rating decision of May 1989
from the Washington, DC, Regional Office (RO) which denied a
compensable disability rating for the veteran's service-
connected bilateral hearing loss.
REMAND
In November 1992, the RO granted service connection for
tinnitus. Although the first page of that rating decision
lists the date as November 17, 1991, it is clear that the
correct date is November 17, 1992. That rating decision also
determined that the veteran was not entitled to a compensable
rating under the provisions of 38 C.F.R. § 3.324. The
veteran, however, was not advised of the determination
regarding a compensable rating under 38 C.F.R. § 3.324 so he
could not appeal it. In July 1993, the representative
submitted a memorandum addressing the RO's November 1992
determination, arguing, in part, that a compensable rating
should have been assigned for tinnitus because this
disability was caused by acoustic trauma. This should have
been construed as a notice of disagreement with the November
1992 rating decision as to the assignment of a zero percent
rating for tinnitus. This matter should be considered in
conjunction with the current appeal inasmuch as it is
intertwined with the issue of a compensable rating under the
provisions of 38 C.F.R. § 3.324.
The veteran underwent VA audiology examinations in June 1968,
April 1989 and May 1992. In April 1989, the average pure
tone air conduction threshold for the frequencies of 1,000,
2,000, 3,000 and 4,000 hertz was 45 decibels in the right ear
and 45 decibels in the left ear. His speech recognition
ability was 96 percent in the right ear and 88 percent in the
left ear. In May 1992, the average pure tone air conduction
threshold was 40 decibels in the right ear and 39 decibels in
the left ear. His speech recognition ability was 96 percent
in the right ear and 94 percent in the left ear. At a recent
personal hearing the veteran testified that his hearing
acuity has deteriorated over the past three-to-four years,
particularly at home and work. Transcript, p. 3 (Apr. 1995).
He also testified that he had undergone audiometry testing at
the Washington Hospital Center, Washington, D.C., prior to
the May 1992 VA examination and was informed by the medical
personnel that his hearing acuity would probably deteriorate
with age. Id., at 4, 8-9. In December 1991 and March 1992,
the RO issued requests to the veteran for additional evidence
in support of his claim. The veteran did not submit
additional evidence or request assistance from the RO in
obtaining that information.
Under the present circumstances, in particular the veteran's
testimony of increased hearing loss over the last few years,
the Board finds that additional development of the evidence is
necessary. Accordingly, the case is REMANDED for the
following actions:
1. The veteran should identify any
medical care providers, VA or otherwise,
who have treated or evaluated him for his
service-connected hearing loss or
tinnitus since May 1992. After obtaining
any needed authorization from the
veteran, the RO should obtain copies of
all these records. The veteran also has
the opportunity to submit any additional
evidence in support of his claim.
2. The veteran should then be afforded a
VA audiology examination at the nearest
available facility to determine the
extent of the service-connected bilateral
hearing loss and tinnitus. The extent,
if any, to which the veteran's hearing
loss and/or tinnitus interferes with
employment, should be noted. The
examination should be conducted in
accordance with the Physician's Guide for
Disability Evaluation Examinations. All
necessary tests should be performed. The
examiner must be provided the claims
folder for review. The average decibel
threshold levels and speech recognition
scores should be reported.
3. The case should then be reviewed by
the RO and the issues of an increased
rating for hearing loss and for tinnitus
should be re-adjudicated, with
consideration of 38 C.F.R. § 3.321(b)(1)
and 38 C.F.R. § 3.324. If the decision
remains adverse to the veteran in any
way, he and his representative should be
furnished with a supplemental statement
of the case which summarizes the
pertinent evidence, fully cites any
applicable legal provisions not
previously provided, including the rating
criteria for tinnitus and 38 C.F.R.
§§ 3.321(b)(1) and 3.324, if appropriate,
and reflects detailed reasons and bases
for the decision. They should then be
afforded opportunity to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration. The veteran need take no action until he is
further informed.
JANE E. SHARP
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This action has been taken in
accordance with the Veterans' Benefits Improvements Act of
1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994),
and is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1994).